A Mixed Bag For Marijuana

Congress’s spending bill interferes with the legalization of pot in DC. But Josh Voorhees focuses on another provision in the bill, which “stops the Justice Department from spending a dime to prosecute patients or medical marijuana dispensaries that are acting in accordance with state law but running afoul of federal ones”:

In shear terms of people impacted, the medical provision will dwarf that of the more publicized D.C. ban, even assuming the latter survives a potential legal challenge. The District is home to roughly 640,000 people; California, one of 23 states where medical pot is legal, is home to more than 38 million. Forcing the federal government to respect state medical marijuana laws has long been a goal of the legalization movement, but one that had previously proved unattainable.

He finds it telling that “a sweeping provision that could fundamentally reshape how the federal government treats medical marijuana slipped through with hardly a peep”:

That just goes to show how far the battle lines have shifted in the favor of the pro-pot crowd and suggests that, in spite of the potential setback in the District itself, the future for their side in Washington is a brighter one.

Having Congress not longer actively opposing medical marijuana is a big victory for the reform movement, but not a complete solution. The provision is only a short-term and incomplete fix. Medical marijuana is still technically illegal under federal law which will continue to causes issues with things like taxes for medical marijuana business. The provision also only applies to this one year funding bill.

What will this mean on the ground? It should mean that DEA and other branches of the Dept. of Justice can no longer threaten medical marijuana providers (or more theoretically, patients) with arrest or prosecution, and that landlords should no longer face the threat of asset forfeiture for property being rented to medical marijuana businesses. But the precise language, which focuses on states’ implementating medical marijuana systems, could be argued as applying more narrowly, giving reassurance to state officials about their participation but not going further. Another concern is that a prosecutor could argue, for example, that a given marijuana business is not operating in strict accordance with a state’s law. Our perspective in the movement is that that determination should be up to state authorities, not federal, but that’s not necessarily the perspective of federal law enforcement. Those are some reasons why it remains to be seen just how thoroughly and reliably the protections that the new law provides will turn out to be, and these questions are being debated right now.

If the Obama administration uses their power to move marijuana to Schedule II or III, this legal impediment on D.C. taxing and regulating marijuana would theoretically be removed. Potentially, there might still be a legal fight over whether raw marijuana would count as a tetrahydrocannabinols derivative, but one can argue that legal term is meant to apply only to newly-discovered and potentially dangerous synthetic tetrahydrocannabinols derivatives, which are often being sold as “incense.” Once again, if both the D.C. Council and the Obama administration share support for this interruption of the law, any legal challenge is unlikely to succeed.]

And Dylan Matthews, who voted for legalization in DC, wants his vote counted:

It’s easy to dismiss the importance of ensuring marijuana legalization in DC. Pot policy tends to be treated as a laughing matter, and DC is admittedly the third smallest state/quasi-state by population. But it’s still, substantively, among the most important riders in the CRomnibus. DC had a higher marijuana possession arrest rate in 2010than any other state (perhaps understandably, as it’s the only city-state): 846 arrests per 100,000 residents, which works out to about 5,091 arrests total.

That’s over 5,000 people a year paying fines, doing community service, and going through probation; it’s over 5,000 people who’ll forever have to check the box on job applications asking if they’ve ever been arrested, among many other consequences for employment, government benefits, child custody, and more. DC also has the second biggest gap between black and white arrests of any state: 1,489 arrests per 100,000 black residents versus 174 per 100,000 white residents. Black Washingtonians are over eight times likelier to be arrested for the same crime, when there’s no evidence of any racial gaps in actual marijuana usage.

(Photo: A man purchases medical marijuana, the first legal sale, at Capital City Care in Washington, DC on July 29, 2013. By Linda Davidson / The Washington Post via Getty Images)